COLIN STEWART and REPATRIATION COMMISSION
[2009] AATA 641
•27 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 641
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0103
VETERANS' APPEALS DIVISION ) Re COLIN STEWART Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date27 August 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Operational service with Royal Australian Navy – Application of Statements of Principles – Diagnosis of anxiety disorder – Diagnosis of alcohol dependence and alcohol abuse – Meaning of “clinical onset” – “Clinical onset” requires evidence of a feature or symptom indicative to a doctor of a disease’s presence – Such evidence not provided – Applicant’s hypotheses not reasonable – Decision affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 9, 13(1), 120(1), 120(3), 120A, 196A, 196B
Byrnes v Repatriation Commission (1993) 177 CLR 564
Lees v Repatriation Commission (2002) 125 FCR 331
RepatriationCommission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Warren (2008) 167 FCR 511
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Stewart and Repatriation Commission [2007] AATA 1598
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Tunks v Repatriation Commission (2008) 102 ALD 274
Youngnickel v Repatriation Commission [2004] FCA 1691
REASONS FOR DECISION
27 August 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Colin Stewart, the applicant, claims that his service with the Royal Australian Navy (“the Navy”) caused his conditions of anxiety disorder and alcohol dependence. I have to decide whether those conditions are related to his service.
Service of Veteran
2. The veteran served with the Navy from 18 January 1960 until 17 January 1969. In those nine years of service he was promoted to the rank of Chief Petty Officer. My review of the veteran’s service reveals an exemplary record of service.
3. While the veteran served aboard the HMAS Derwent, he had a number of periods of operational service:[1] in Malaysia, Singapore and Brunei (18 November 1964 to 22 January 1965; 27 January 1965 to 8 February 1965; 11 March 1965 to 21 April 1965; 17 February 1966 to 30 April 1966; 8 June 1966 to 5 July 1966; 16 July 1966 to 3 August 1966); and in Vietnam (26 May 1966 to 13 June 1966).
[1] As listed in Exhibit D, Respondent’s Statement of Facts and Contentions, at [3.1].
Accepted Conditions
4. The veteran is presently entitled to a disability pension of 40% of the general rate for a number of accepted conditions: tinea of feet and groin, chronic solar skin damage, bilateral pterygium and bilateral hearing loss with tinnitus.
Prior Decisions
5. On 10 July 2008, the Repatriation Commission (“the Commission”) determined that the conditions of anxiety disorder and alcohol dependence were not related to Mr Stewart’s operational service.[2]
[2] T2.
6. On 13 November 2008, the Veterans’ Review Board affirmed the decision of the Repatriation Commission.[3]
[3] T5.
7. The veteran now applies for review of the decision of the Repatriation Commission.
LEGISLATIVE FRAMEWORK
8. Section 9 of the Veterans’ Entitlements Act 1986 (“the Act”) provides for when an injury or disease is taken to be war‑caused. The provision applies where “the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.
9. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
10. As the veteran has performed operational service, the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the Act.
11. The Act contemplates pension claims where operational service rendered by a veteran causes either the veteran’s death or incapacity from injury or disease. In such cases, the Commission shall determine that the death, injury or disease was war or defence-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making such a determination: s 120(1) of the Act.
12. The Act provides that the Commission shall be satisfied beyond reasonable doubt if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person: s 120(3).
Statement of Principles
13. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“the Authority”). According to s 196B of the Act, if sound medical-scientific evidence indicates that a particular kind of injury, disease or death can be related to veterans’ operational service, the Authority must determine a Statement of Principles (“SoP”). Such an SoP sets out the factors that must exist to establish a reasonable hypothesis connecting the injury, disease or death with the circumstances of a veteran’s service.
14. In the Act, reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides, in effect, that a factor causing an injury is “related to service” if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
15. In the case of applications lodged after 1 June 1994, where the Authority has made an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from the application of s 120A(3) of the Act, which provides that a hypothesis is reasonable if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
ISSUES
16. I have to determine whether the circumstances of the veteran satisfy the SoP for Anxiety Disorder (Instrument No 101 of 2007) and the SoP for Alcohol Dependence/Abuse (Instrument No 1 of 2009). The veteran also has an accrued right to have his application considered under an earlier SoP for Alcohol Dependence/Abuse (Instrument No 17 of 2008).
MEDICAL EVIDENCE
17. There are a number of reports from psychiatrists, which are in evidence before me.
18. On 3 May 2005, Dr Tom Hogan, psychiatrist, gave a report in which he diagnosed the veteran as suffering from generalised anxiety disorder, alcohol dependence and abuse and posttraumatic stress disorder in remission. The report does not contain any discussion of any relevant stressors.
19. Dr Bruce Lawford, psychiatrist, on 20 June 2008 diagnosed the veteran, who was then working, as suffering from generalised anxiety disorder and alcohol dependence and abuse. Dr Lawford considered that a number of stressors caused those disorders: marital disharmony due to sea duties; a family member’s deterioration in health; and a heavy workload.
20. Dr Lawford, who saw Dr Hogan’s report, expressed the opinion in his own report that the veteran had never suffered from posttraumatic stress disorder because he never developed sufficient stressors to develop such a condition.
DIAGNOSIS
21. Initially, I have to determine the appropriate diagnosis of the veteran’s condition. There is uncontradicted evidence from two psychiatrists that the veteran is suffering from generalised anxiety disorder and alcohol dependence/abuse. I find that the veteran is suffering from those conditions.
CONSIDERATION
22. Having made a diagnosis of the veteran’s conditions and ascertained that an SoP is in force in relation to them, it is now appropriate for me to apply the test prescribed by s 120A(3) of the Act. In doing so, it is useful to refer to the four steps expounded in Repatriation Commission v Deledio.[4] Neither a substitute for the statute nor an algorithm, the four Deledio steps are still helpful in navigating the statutory requirements.[5] The four Deledio steps are as follows:
1 The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11) …
3 If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
[4] (1998) 83 FCR 82 at 97-98.
[5] See Tunks v Repatriation Commission (2008) 102 ALD 274 at 281 [34] per Madgwick J.
The first Deledio step
23. I must now consider all the material before me and determine whether it points to a hypothesis connecting the veteran’s conditions (generalised anxiety disorder and alcohol dependence/abuse) with the circumstances of his particular service. In my view, the action of firing on an enemy Indonesian boat whilst the veteran was shut down below at action stations and proceeding upstream in the HMAS Derwent to fire 4.5 inch shells into the jungle is sufficient to point to such a hypothesis.
24. Accordingly the first Deledio step is, in my view, satisfied.
The second Deledio step
25. The second Deledio step requires me to ascertain whether there is an SoP which has been determined by the Authority.
26. I have already referred to the SoPs for Anxiety Disorder (Instrument No 101 of 2007) and Alcohol Dependence/Abuse (Instrument No 1 of 2009). As mentioned above, the veteran also has the right to have his application considered under an earlier SoP for Alcohol Dependence/Abuse (Instrument No 17 of 2008).
27. Those SoPs expressly provide that they apply to claims under s 120A of the Act.[6]
[6] Clause 10 of each SoP.
The third Deledio step
28. Having completed the second Deledio step I now turn to the third Deledio step, which requires me to determine whether the hypotheses raised by the veteran are reasonable. To do this, I am required to determine whether each hypothesis complies with one or more of the factors referred to in the relevant SoP. In making this determination, I have an obligation to consider all of the material before me. I am not concerned with making any findings of fact at this stage of the process.
29. In considering the SoP for Anxiety Disorder, the factors which are relied upon in the written submissions of the veteran are:[7]
· Factor 6(a)(ii): experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder;
· Factor 6(a)(v): experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder;
· Factor 6(c)(v): having a clinically significant psychiatric condition within the ten years before the clinical worsening of anxiety disorder.
[7] Written submissions of the veteran, dated 25 May 2009, page 3.
30. In considering the SoPs for Alcohol Dependence/Abuse, the factors relied upon in the written submissions of the veteran are:[8]
· Factor 6(a): having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse;
· Factor 6(b): experiencing a category 1A stressor within the five years before the clinical onset of alcohol dependence or alcohol abuse.
[8] Written submissions of the veteran, dated 25 May 2009, page 3.
31. The veteran’s contentions are contained in a statement of 6 March 2009,[9] in which he stated he experienced three main stressors. I will outline those stressors in my consideration of his claim.
[9] Exhibit A.
Stressors
Marital disharmony
32. Stressor 1 in the veteran’s statement related to marital disharmony caused by his wife threatening separation. This eventually led to divorce. The veteran remarked in his statement:
I suffered marital disharmony during this period, whilst on active service, by my wife threatening separation if I continued to be away from home for extended periods of time, which I had little control over. The disharmony continued throughout my Navy Service career for 9 years and eventually leads [sic] to my leaving the Navy even though I was a Chief Petty Officer and had opportunities of advancement to Electrical Officer with training in England.
33. The veteran gave evidence that he married a naval servicewoman who, after their marriage, took up a civilian posting. The veteran was honest in cross‑examination and admitted that his wife appreciated that he had duties at sea. There is evidence before me that the veteran admitted he did not seek to be posted ashore at that time. The evidence discloses that there was marital disharmony until the veteran separated from his wife some 28 years after the cessation of his operational service.
34. Ms Frizelle, on behalf of the veteran, contends that marital disharmony is a “category 2 stressor” for the purposes of the SoP for Anxiety Disorder. As that stressor was listed as “Stressor 1” in the veteran’s statement, it may be regarded as the foremost stressor in his mind - although it was not relied upon by the veteran in his 2007 hearing before this Tribunal.
35. In evaluating that stressor I have had regard to the definition of “a category 2 stressor” contained in clause 9 of the Anxiety Disorder SoP. This definition has two aspects: the stressor must be a “negative life event” and the effects of the stressor must be “chronic in nature”.
36. The veteran’s submission does not identify which paragraph of the “category 2 stressor” definition is being relied upon. Marital disharmony may be thought to fit into paragraph (b) of the definition, which refers to “experiencing a problem with a long-term relationship”. However, none of the examples given in the definition occurred during the period of the veteran’s operational service: there was no marital separation or divorce at that time. Nor, as the veteran stated during cross-examination, was there any marriage counselling.
37. The examples found in paragraph (b) of the “category 2 stressor” definition are not, of course, an exhaustive list of incidents. The presence of the word “including” indicates that other chronic events may satisfy the definition, but there is no material before me relating to marital disharmony. I appreciate that being separated from his wife whilst on operational service would cause the veteran anxiety, but such anxiety would not be encompassed by the definition in paragraph (b).
38. I have also examined the other paragraphs in the definition of “a category 2 stressor”. Each paragraph lists a negative life event in which there are significant psychological impacts upon a veteran. This reflects the requirement that the negative life event be “chronic” in nature. I should mention that I have examined the record of the veteran during his service. In each year, he was awarded a very good report certified by the captain of the naval vessel he was serving on. There is no indication that the effects of the stressor were “chronic in nature” as required by the definition. Indeed, the veteran in evidence before me remarked that he “enjoyed” the Navy but his wife did not.
39. In my view, the veteran’s marital disharmony is not a “category 2 stressor” as defined in clause 9 of the SoP for Anxiety Disorder.
HMAS Derwent and the Indonesian patrol boat
40. Stressor 2 as described in the veteran’s statement related to the HMAS Derwent firing upon an enemy Indonesian boat whilst the veteran was shut down below at action stations. An Indonesian patrol boat was intercepted when the veteran was on duty. Machinegun fire was directed across the patrol boat’s bows so that it could be searched. The veteran was manning the main switchboard, directly below the machine gun used to fire the warning shot or shots. He mistook the noise of the ejected shells as incoming fire and only realised what they were after the gun ceased firing. The veteran stated that he feared for his life at that time and thought about his family, including his young son. The veteran remarked in evidence that, after this incident, he went about his duty in “manning the switchboard and this went on for some time”.
41. The veteran in his statement remarked that:
HMAS DERWENT was on night patrol at normal cruising speed, suddenly she increased to maximum speed, and the ship became extremely noisy and vibrated badly. While this was happening I heard heavy calibre machine gun firing from our ship and at the same time I heard loud clanging noises above my head. For a period of time (approximately an hour) I thought the ships [sic] port hull next to me was being hit by machine gun bullets. I panicked as I was the only person in the space and feared for my life and had thoughts of my wife and young son at home and if I would ever see them again. I had previously witnessed heavy machine guns fire at a 44gal drum, which had been thrown overboard for target practice by the gunnery sailors and saw firsthand the damage that a heavy calibre machine gun could cause. It was long after the incident ended, that I realised that the clanging noises that I had heard were the empty shell casings from the ships [sic] heavy machine guns hitting the deck above my head. This space was not insulated and was not my normal action station.[10]
[10] Exhibit A, page 2.
42. The evidence of the veteran in relation to this stressor was summarised by the Tribunal in Re Stewart and Repatriation Commission[11] as follows:
The ship was cruising at about 18 knots but he became aware that it suddenly increased its speed to about 28 knots. The ship became even noisier and vibrated at that speed. He said he assumed the vessel was chasing something. He was startled when a machine gun began to fire. The gun was positioned on the deck immediately above his position. He said that he heard the sound of the gun and then a tinkling sound on the outside of the hull. For a few seconds, he assumed the ship was under fire. He said he thought the rounds were striking the hull immediately outside. He said he felt fear for his life and, for a few seconds at least, he thought about his wife and child and believed he was about to die. He soon realised the sound he heard was spent shell casings from the ship’s gun striking the deck. He understood then he was in no immediate danger. He said the whole incident might have lasted less than a minute, and his erroneous perception of being fired upon may have lasted for perhaps 30 seconds. The applicant said he had only heard the guns fire once before.
[11] [2007] AATA 1598 at [13] – see T4, folio 79.
43. In cross-examination, the veteran was asked whether that summary of his evidence by the Tribunal was accurate. The veteran stated that he took issue with two points. Firstly, he stated that the incident lasted for minutes rather than seconds. Secondly, he remarked that the sound of the empty shells falling on the deck was a “clanging” and not a “tinkling” sound.
44. There is a clear discrepancy between the account of this incident that the veteran gave to the Tribunal at the first hearing and the account that he gave at the hearing of this present application. That discrepancy relates to the duration of the firing of the machine gun. I am prepared to assume that the incident lasted for minutes having regard to the answers given by the veteran during cross-examination.
45. I have to consider whether this stressor was a “category 1A stressor” as defined in clause 9 of the SoP for Anxiety Disorder. A “category 1A stressor” means one of the “severe traumatic events” contained in the definition. The only relevant “severe traumatic event” mentioned in the definition is at paragraph (a). It refers to the veteran “experiencing a life-threatening event”. Paragraphs (b) and (c) of the definition refers to events such as being subject to a serious physical attack or assault, being threatened with a weapon, being held captive, being kidnapped or being tortured. The evidence before me does not raise these latter two paragraphs.
46. I am of the opinion that the veteran did not experience “a life threatening event”. Ms Frizelle, counsel for the veteran, has quite rightly mentioned that the term “life-threatening event” is not defined in the SoP. The term must be given its natural meaning. I have reviewed the evidence before me and cannot find any material relating to the veteran experiencing a threat to his life. I accept as truthful the evidence of the veteran that he had an apprehension of danger but, in my view, such an apprehension is not sufficient for the application of this SoP. Such an apprehension would have been relevant in the consideration of those precedents relied upon by the veteran concerning earlier SoPs. Those earlier SoPs refer to “a severe psychological stressor”, which expression certainly has a subjective element. Decided cases discussing “a severe psychological stressor” are in my view of no relevance in considering the definition of a “category 1A stressor” contained in the current SoP.
HMAS Derwent firing shells into the jungle
47. Part of what Mr Stewart describes as “Stressor 2” (but in my view being a distinct stressor) is HMAS Derwent proceeding upstream to fire 4.5 inch shells into the jungle. The veteran did not give oral evidence about this incident, nor was it the subject of submissions lodged on his behalf. However, as this incident was mentioned in his statement of 6 March 2009,[12] this possible stressor certainly warrants consideration under the SoP for Anxiety Disorder. The veteran has remarked that he was concerned that innocent people may have been injured. However, there is no evidence that the veteran witnessed the target of the gunfire. In such circumstances, I do not consider that the stressor is a “category 1A”, “category 1B” or “category 2” stressor in terms of the SoP for Anxiety Disorder.
Supervising Petty Officer threatening the Duty Officer of the watch
[12] Exhibit A.
48. Stressor 3, according to the veteran’s written statement, occurred when his supervising Petty Officer threatened the Duty Officer of the watch with death. Only the intervention of the veteran prevented that threat from being carried out.
49. The veteran remarked in his statement that:
During the first tour HMAS DERWENT was anchored in Tawau harbour for shore leave. I was on duty and was put in charge of a shore patrol to police the sailors ashore in the port of Tawau. I was on the last ships [sic] launch to take the sailors back to the ship and the leave sailors were all pretty full of alcohol. Upon reaching the stern of the Derwent the Duty Officer and myself attempted to quieten the rowdy sailors down, but to no avail. Among the sailors was my senior Petty Officer [name deleted][13] who was extremely intoxicated. He stood up in the launch and in a most uncharacteristic manner started to abuse the Duty Officer of the watch, who then threatened to charge him, which made the situation worse. On boarding the ship I followed PO [name deleted] down the main passage way where he became quite hysterical and was threatening to kill the Duty Officer. To prevent him from carrying out this threat I had to wrestled [sic] him to the deck and hold him there until he calmed down and then I took him to his mess. PO [name deleted] was subsequently charge by the Duty Officer, fronted the ship’s Captain, reduced in rank and sent back to Australia. I was then put in charge of the Sonar system maintenance ...[14]
[13] I do not consider it necessary in these reasons to disclose the name of the Petty Officer.
[14] Exhibit A, pages 2-3.
50. The veteran stated in his evidence that when he undertook sonar system maintenance he was given “a fair bit of responsibility for a leading hand”. The veteran commented upon his assumption of higher duties to the Veterans’ Review Board. The reasons of that Board contain the following remarks:
… the Electrical Officer asked him if he could do his superior’s job, which he said he could. He was ranked Petty Officer at the time and although he was busy he enjoyed the opportunity. He admitted that the relationship between work stress and anxiety only occurred to him on reflection, some years later.[15]
[15] T5, folio 124 [13].
51. The fact that the veteran advised the Veterans’ Review Board that he was busy at the time and enjoyed his job on HMAS Derwent contradicts any suggestion that a stressor arose from this incident.
Hospitalisation of mother
52. The veteran gave evidence that whilst he was on operational service his mother had to be hospitalised to undergo some tests. His mother was diagnosed with cancer only after he was discharged from the Navy. I have taken the view that this stressor is not a “category 2 stressor” because it is not related to the relevant service rendered by the veteran: see clause 5 of the SoP for Anxiety Disorder.
Clinical onset
53. With respect to the veteran’s claim, it is also necessary to have regard to the clinical onset of his conditions.
54. The meaning of the expression “clinical onset” was considered by the Full Court of the Federal Court of Australia in Lees v Repatriation Commission.[16] The Full Court referred to the analysis of this Tribunal in Re Robertson and Repatriation Commission,[17] that:
... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present ...
[16] (2002) 125 FCR 331.
[17] (1998) 50 ALD 668 at 670 [23].
This analysis was specifically approved by Branson J in Repatriation Commission v Cornelius.[18]
[18] [2002] FCA 750 at [26]. See also Youngnickel v Repatriation Commission [2004] FCA 1691 at [26] per Bennett J.
55. In considering the evidence relating to clinical onset, I have examined the two psychiatrists’ reports in evidence before me. In his report, Dr Hogan opines that the veteran “has had Anxiety Disorder symptoms for many years”. That report does not contain any discussion of the basis for that conclusion or a statement of when clinical onset would have occurred. In his report, Dr Lawford diagnosed the veteran as having suffered from generalised anxiety disorder, alcohol abuse and alcohol dependence disorder. Dr Lawford, who considers that the anxiety symptoms developed first, opined the date of onset as being “approximately in 1966 during the period of his service in Malaysia and Vietnam”. However, the basis for that conclusion is not stated.
56. The date of clinical onset of the anxiety disorder and alcohol dependence/abuse conditions is an important issue in considering whether the SoPs are satisfied. The veteran, in his written submissions dated 25 May 2009, contends that the respondent did not challenge the conclusions of Dr Lawford and Dr Hogan with respect to the clinical onset and diagnosis of the conditions. The submission made on behalf of the veteran is that the respondent, by not so challenging, accepts the opinions of Dr Hogan and Dr Lawford. I should, it is submitted, “draw this inference”.[19] However, the respondent’s written submissions (to which the veteran has not replied) lodged in response to those of the veteran certainly do not accept the conclusion of Dr Lawford—that the date of onset of the anxiety condition was sometime around 1966. I should mention that neither Dr Hogan nor Dr Lawford were called as witnesses by the veteran.
[19] Veteran’s written submissions, dated 25 May 2009, page 13.
57. The case for the respondent was conducted against the background formed by its Statement of Facts and Contentions, lodged with the Tribunal and served inter partes prior to the commencement of the hearing in accordance with the General Practice Direction.[20] That Statement of Facts and Contentions discloses that the respondent conducted its case on the basis of whether the conditions of anxiety disorder and alcohol dependence were war-caused.[21] It also contains the following contention: “Nor was the applicant suffering from a clinically significant psychiatric disorder, which in itself is service related, at the time of the clinical onset (or clinical worsening) of alcohol abuse/dependence”.[22] This contention, quite squarely in my view, puts in issue whether the condition of anxiety disorder was “related to service”. Indeed, a fair reading of this contention is that it is a denial that the anxiety disorder condition is “related to service”.
[20] See Repatriation Commission v Warren (2008) 167 FCR 511 at 532 [92] per Logan J.
[21] Exhibit D, Respondent’s Statement of Facts & Contentions, at [2.1].
[22] Exhibit D, Respondent’s Statement of Facts & Contentions, at [5.1].
58. In my view, the respondent has certainly not conceded that the date of onset of anxiety disorder is as stated in Dr Lawford’s report. Indeed, such a concession would be quite contradictory to the fact that the respondent has put into issue whether the conditions of anxiety disorder and alcohol dependence were war‑caused. It would also contradict the respondent’s contention that the condition of anxiety disorder was not service related. The respondent was never called upon during the hearing (as is often done in cases of this nature) to make a concession as to the date of the clinical onset of either condition.
59. I should also mention that material before me includes the reasons for a decision of this Tribunal concerning a previous application by the veteran (in respect of the same conditions). The constitution of the Tribunal on that occasion included a member with extensive military experience in the provision of medical services. The Tribunal commented that “we are not satisfied from the evidence that a doctor would have been able to diagnose either condition within two years of the date of the incident as required under each SoP”.[23] Although this remark was made in the context of different SoPs for the conditions of anxiety disorder and alcohol dependence/abuse, it highlights the need in this case to provide material relating to the date of clinical onset of those conditions.
[23] Re Stewart and Repatriation Commission [2007] AATA 1598 at [18] – see T4, folio 81.
Conclusion of third Deledio step
60. Earlier, I mentioned that I have before me the opinion of Dr Lawford that the date of onset of the anxiety disorder condition was 1966. However, the basis of his opinion is not contained in his report. Dr Lawford, to adopt the words of Giles JA in South Western Sydney Area Health Service v Edmonds,[24] “did not identify a factual basis” for his opinion. In the circumstances, Dr Lawford’s bare opinion does not in my view advance the case of the veteran at all. There is no material which indicates symptoms in relation to the time of clinical onset of anxiety disorder and alcohol dependence. Although the psychiatric reports (written more than 30 years after the relevant events) contain an opinion concerning the date of clinical onset, they do not refer to the nature of the symptoms relied upon to form such an opinion.[25] When medical practitioners express an opinion about the clinical onset of a condition, it would ordinarily be the case that they would state that the presence of certain symptoms at a particular time was indicative of the clinical onset of a condition.[26]
[24] [2007] NSWCA 16 at [6].
[25] Lees v Repatriation Commission (2002) 125 FCR 331.
[26] Re Robertson and Repatriation Commission (1998) 50 ALD 668, 670.
61. I make the observation that it is not possible for me to rule that any of the hypotheses advanced on behalf of the veteran are reasonable for the purposes of s 120(3) of the Act. This is because there is no material before me pointing to the clinical onset of a condition.[27] The introduction of the SoP system has not displaced the requirement that there must be “facts raised by the material before the Commission” which give rise to a reasonable hypothesis connecting the veteran’s conditions with war service.[28] In my view, merely asserting the date of clinical onset is not sufficient for me to form an opinion about whether a hypothesis is reasonable—there must be facts placed before me upon which that conclusion was made. This is particularly so where there is a real contest between the parties as to whether a condition was war-caused.
[27] ReRobertson and Repatriation Commission (1998) 50 ALD 668, 670; Repatriation Commission v Cornelius [2002] FCA 750 at [36] per Branson J.
[28] Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.
62. For these reasons, I accept the submission of the respondent, to which no reply was made on behalf of the veteran, that the third Deledio step is not satisfied.
DECISION
63. I affirm the decision under review.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
Signed:.....................[Sgd].......................................................
Mátyás Kochárdy, Research AssociateDate of Hearing 20 May 2009
Final Submissions received 1 July 2009
Date of Decision 27 August 2009
Counsel for the Applicant Ms Ann Frizelle
Solicitor for the Applicant G Couper Solicitors
Solicitor for the Respondent Mr Jeff Kelly, Departmental Advocate
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